Law, Business, And Society : Writing Assignment

1601 WordsSep 28, 20157 Pages
Jennifer (Shiyu) Zhuang Law, Business, & Society: Writing Assignment 1 In Obergefell v. Hodges, the Court sought to discuss the issue of whether state bans on same-sex marriage were constitutional and if states had to lawfully recognize marriages performed in other states. In a narrow vote of 5-4, the majority ruled that the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment guarantee the right to marry for same-sex couples as one of the Constitution’s fundamental liberties. In this paper, I will be discussing the criticisms that Chief Justice Roberts makes against majority opinion, my agreement with his views of marriage as a fundamental right, Justice Thomas’s dissent of the definition of “liberty,” the…show more content…
The determination of a fundamental right is not based on the social and economic beliefs of the judges, but should be based on precedence that shows the right to be deeply rooted in American tradition, “such that neither liberty nor justice would exist if they were sacrificed.” However, there is no precedence which gives way for the majority to force States to alter their definition of marriage and to use substantive due process to legalize same-sex marriage. The precedent cases Justice Kennedy cites are in regards to the fundamental right of traditional marriage. There is no precedence to determine that the right of marriage extends to same-sex couples. Justice Roberts’ argues that the majority ruled that bans on same-sex marriage violated the Fourteenth Amendment based on an “understanding of what freedom is and must become.” The majority’s use of substantive due process was not a neutral judgment based on sound legal principles, but rather an attempt to transform the social institution of marriage. Roberts’ repeatedly references the ruling of Lochner v. New York, citing the case as a comparison to how the use of substantive due process regresses the impartiality of the Supreme Court. According to Justice Roberts, this erroneous ruling
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